Appeal No.	 EAT/0882/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 October 2001

Before
HIS HONOUR JUDGE J R REID QC
MR A E R MANNERS
MR A D TUFFIN CBE

MR M BERRY	APPELLANT

G B ELECTRONICS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(of Counsel)
Messrs Pattinson & Brewer Solicitors
71 Kingsway
London
WC2B 6ST	
For the Respondent	Respondent debarred from defending the appeal	

HIS HONOUR JUDGE J R REID QC

1	This is an appeal by the Applicant below, Mr Berry, against a decision of the Employment Tribunal held at Bristol on 17 May 2001.  By that decision the Tribunal held that the Applicant’s claim for unlawful discrimination on the ground of disability should be dismissed, but on the Respondent’s submission, held that Mr Berry had been unfairly dismissed and ordered the Respondent to pay the Applicant the sum of £150 by way of compensation for the unfair dismissal.

2	The brief facts are these.  Mr Berry was one of seven employees dismissed by the Respondent company on the grounds of redundancy in May 1999.  The other six employees presented claims for unfair dismissal as well.  Those claims were tried first because the applicant, Mr Berry, had an addition, his claim for disability discrimination.  The other six employees were successful in their claim for unfair dismissal and it was in the light of those findings that the Respondent admitted, and the Tribunal found, unfair dismissal in Mr Berry’s case.  The hearing, in Mr Berry’s case therefore, proceeded effectively only on the grounds of disability discrimination.  

3	Mr Berry has been profoundly deaf from birth.  He cannot speak.  He communicates in writing or by a combination of sounds and gestures which people who have known him for a long time can understand.  He can also, to some extent, lip read, but this is only a satisfactory method of communication with people whom he knows well.  It was accepted, and the Tribunal were unanimously satisfied, that Mr Berry did indeed meet the statutory definition of a person with disability.  

4	Mr Berry had worked for the Respondent and its predecessor from August 1959.  He was there just short of forty years, because on 12 May 1999 he was dismissed with immediate effect.  Happily, I should say, almost immediately after that dismissal he found other employment at an increased rate of pay and it was for that reason that the compensation awarded for the unfair dismissal was limited to £150.  The employer was engaged in the manufacture of various electrical components.  Mr Berry was primarily a packer though he did assembly tasks from time to time in accordance with the needs of the business.  His instructions were given to him either by senior management, who could communicate with him by various means, or by Miss Wilson, who was the site’s trade union shop steward, who had known him for over thirty years.  There is no suggestion that at any stage before his dismissal he was ever subjected to discriminatory treatment on the grounds of his disability.  He was, it was said, treated like everyone else and he was happy with that state of affairs.  

5	Unfortunately in April 1999 the company’s business was not doing well and redundancies were required.  Various criteria were set out and there was a marking system put in place.  On 12 May, following the marking having taken place, Mr Berry and six others were called into the canteen about half an hour before they were going to leave work by bus.  All seven were then told that they were dismissed by reason of redundancy.  They were given forms by which they could claim redundancy payments from the Secretary of State and told they would be paid in lieu of notice on a week by week basis.  Their employment however, ended that day.  Mr Berry, the Tribunal found, had the greatest difficulty in understanding the situation.  He realised he had lost his job but he could not understand why, or that he was one of various others and not the only person selected.

6	The Tribunal accepted his evidence, and that of Miss Wilson, who was at the meeting and was dismissed at the same time, that he was bitterly distressed at this sudden end to nearly forty years of employment, that he cried and shook and needed a good deal of reassurance and support.  The position was, on the findings of the Tribunal, that he was upset, but the Tribunal found as a fact that the cause of his distress was not any perception that he was suffering from discrimination but simply the distress caused by the loss of his employment.  The shock and distress caused by the unfair dismissal does not of course give rise to any separate head of compensation.

7	The argument advanced before us, on behalf of Mr Berry, was that his selection for redundancy was less favourable treatment within the meaning of Section 5(1) of the Disability Discrimination Act because he was marked down in certain categories because of his disability.  Alternatively, that the selection criteria placed him at a substantial disadvantage in comparison with non-disabled employees, so that the Respondent’s failure to adjust them to remove the disadvantage was a breach of Section 5(2).  I shall set out Sections 5(1) and 5(2) of the Act which were in these terms:

“(1)	For the purposes of this part, an employer discriminates against a disabled person if –
	(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
	(b)	he cannot show that the treatment in question is justified.

(2)	For the purposes of this Part, an employer also discriminates against a disabled person if –
(a)	he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and
	(b)	he cannot show that his failure to comply with that duty is justified.”

8	The Employment Tribunal held that he was, or might have been, marked down in three categories as a result of his disability.  The three categories were, ability to learn, attitude, and team player.  There was some dispute as to whether he was marked down in those three categories.  He himself identified only two of them, namely, attitude and team player.  The Tribunal however, went on and said that, even if he had been marked up in those three categories to an average mark, he would still have fallen within what might be termed the relegation zone, and would have been one of those who would have been made redundant.  They therefore took the view that for this reason he had not been treated less favourably, for a reason relating to his disability.  They justified that simply by saying that he would have been selected anyway.  

9	The submission made on behalf of the Appellant is that the conclusion was flawed, firstly, because the Tribunal failed to consider whether the discriminatory application of criteria were of themselves acts of discrimination or detriments, and then that they failed to apply the appropriate approach which was whether the Appellant was put under a disadvantage.  That is the test which is derived from the well known case of Jeremiah v Ministry of Defence [1979] IRLR 436.  

10	The position, the Appellant submits, and in our judgment rightly submits, is that he was put under a disadvantage because, in relation to those three categories, his disability affected his marks in a way that it did not affect the marks of those who were not suffering from a disability and because no steps were taken to make any adjustment to take account of the detriment he suffered by being marked down.  

11	We therefore take the view that the Tribunal was wrong in law in holding that there was no discrimination against the Applicant, Mr Berry.  There was no suggestion that it would have been impractical to deal with the detriment by some appropriate marking uplift or whatever.  That said, the fact of the matter is that the Appellant would, as the Tribunal found, and in our judgment they were correct in so finding, Mr Berry would have been selected in any event for redundancy.  In those circumstances it seems to us that so far as this head of claim is concerned the appropriate response of the Employment Appeal Tribunal is to make a declaration that, by applying the criteria which they did, the employer discriminated against Mr Berry on the basis of his disability.

12	The second element in the appeal relates to the failure of the employer to take account of Mr Berry’s disability in the manner in which he was informed of his dismissal.  The position there was that he was not afforded any special treatment.  He was, with the other persons who were dismissed, told of his dismissal in a single meeting.  It is clear on the findings of fact that he had difficulty in comprehending precisely what was going on.  He got, immediately, the fact that he was dismissed.  He could not understand initially, why.  Nor could he understand initially that he was one of a number dismissed.  The process of dismissal was one which could, as the Employment Tribunal said, have been dealt with in a much better manner.  The dismissal itself, they said, was handled in a way which was insensitive.  They then went on to say:

“Even if we were wrong about that, it would still have seemed to us that the cause of the applicant’s distress was not any perception that he had suffered discrimination.  It was the loss of his employment; and there is no power in a tribunal to award compensation for the shock and distress which an unfair dismissal in itself may occasion to an employee.”

13	In our view the Tribunal was in error in saying that there was no detriment suffered in the manner of the dismissal.  It is unlawful for an employer to discriminate against a disabled person whom he employs.  I quote from Section 42(d):

“By dismissing him or subjecting him to any other detriment.”

Is seems to us that there is a detriment in bringing a profoundly deaf person in with a group of others who can hear and dismissing him in circumstances where he has difficulty in comprehending what is going on.  It was something which could easily have been dealt with by an appropriate adjustment, namely, by having him interviewed separately at the same time, by someone who was capable of communicating with him in a proper manner.  For example, in this instance, Miss Wilson was also to be dismissed.  She was the shop steward who could communicate to him and there was no reason why a member of management should not have taken those two apart from the others and dealt with their dismissal separately.  We therefore take the view, as I have said, that there was discrimination in the manner of his dismissal.

14	We then come on to the question of whether compensation should be awarded for his injury to feelings arising out of that.  We are satisfied that in this instance it would not be appropriate to send the matter back to another Employment Tribunal because it seems to us there are proper findings of fact, namely, that the problem that caused him the upset was not the difficulties in the manner of his being told of his dismissal, but that he was greatly hurt and distressed by the fact that he was being dismissed from a job which he had held for almost forty years at about twenty minutes notice. 

15	In our judgment therefore, this is not a case where it can be said that there has been an injury to feelings by reason of the discrimination, and again the appropriate remedy, and really this is by way of a process of education for others more than anything else, is to make a declaration that the manner of his dismissal was discriminatory and to leave it at that.  It would be hoped that that declaration will make other employers aware of the need for appropriate and sympathetic treatment of other persons suffering from similar types of disability to Mr Berry at the time of their dismissal.  

16	The appeal will therefore be allowed in the manner which I have indicated.  The declarations will be made, but no further remedy will be given.